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Notes On The School Integration Cases

[ 1 ] June 28, 2007 |

Some initial observations based on a first reading of the Court’s opinion striking down voluntary school integration programs in Louisville and Seattle:

  • Nothing in the text of the Constitution compels these programs to be struck down. Essentially, Roberts’s plurality opinion rests on the assertion that racial classifications intended to perpetuate a caste system should be considered the precise legal equivalent of racial classifications intended to remedy segregation. This is exceptionally unpersuasive, and also makes it almost impossible to actually remedy the ongoing de facto segregation of American school systems, much of which has roots in various forms of state discrimination (not just formal apartheid in the South, but the drawing of arbitrary school district lines to create segregated systems, local ordinances encouraging residential segregation, etc.) As Breyer says, “This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.” To compare what these cities are doing to states that maintained apartheid is historically blinkered and morally untenable.
  • Given the modesty of the Seattle program — which used race only as a tiebreaker, making the potential injustices of the classification particularly dubious — it is clear that no affirmative action program is going to survive an encounter with the Roberts Court in its current configuration. This is another area where replacing O’Connor with Alito makes a major difference.
  • The opinion was predictably narrowed by Kennedy, who provided the swing vote but (exactly as Dahlia Lithwick predicted) holding out the dim possibility that a future program may theoretically take race into account. This probably won’t be terribly meaningful in practice (particularly since the federal courts are rapidly abandoning the desegregation orders necessary for Kennedy’s distinction to be relevant.)
  • I strongly urge you to read Breyer’s dissent, which among many virtues contains a detailed history of segregation in both cities, pointing out that federal court orders were necessary to compel desegregation in both cities and (contrary to the plurality) even Seattle had significant elements of de jure segregation. It also does a good job of pointing out the opinion’s obvious inconsistency with past precedents the Court claims to be applying (I’ll have more on that later.)
  • I’ll have an article about this coming out tomorrow, but you will be shocked to hear that Thomas’s concurrence does not contain the long-awaited historical evidence that the Fourteenth Amendment was originally understood as prohibiting even remedial racial classifications. Strange; I’m sure he must have it somewhere and just hasn’t gotten around to it! Obviously, in the wake of Bush v. Gore accusations by conservatives about liberals favoring “judicial activism” or “outcome-oriented” jurisprudence are risibly hypocritical, but here’s another data point.
  • I’ll give the last word for to Breyer: “Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.

    The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”


[ 0 ] June 28, 2007 |

Stevens, dissenting in the Seattle integration case:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

A re-writing, of course, which is crucial if you want to maintain that remedial racial classifications are precisely equivalent to racial classifications intended to subordinate a particular racial group.

And then There’s This

[ 0 ] June 28, 2007 |

An anonymous couple has a website up through which they are trying to raise $50,000 to allow them to have a child. If they dont’ raise the money they don’t feel that they will be able to raise the child in the manner they desire, so they will seek an abortion. Via Gawker:, here’s the couple’s statement:

Please don’t mis-understand, it’s not that we _want_ to abort the baby. Although neither of us is particularly pro-life, we don’t want to have to have an abortion. We think we’d be pretty good parents, and we both would enjoy raising a kid. We’re both from pretty good stock, well educated and intelligent. We’d be able to raise the child in a good environment, teach it right, keep it out of trouble, and introduce a new productive member of humanity to the world. Our kid won’t grow up and rob you.Right now, we just can’t afford it, which is why we’re here, on this site. We’ve crunched some numbers, and we believe that, to really set ourselves up in a good environemnt [sic] for the baby, we need $50,000.

If they decide not to carry the pregnancy to term, they’ll donate whatever money they have raised to a nonprofit. In their words, “probably a pro-life organization.”

I am flabbergasted. Raising a kid is expensive, sure, and it’s a serious problem that it’s so hard to make enough money in this country to send a child to college without accruing huge debt. But is this the solution? I’m gonna go with no.

update: Yes, people, I know this could be a joke. Still interested what you think.

Lines that We Shouldn’t Be Drawing

[ 0 ] June 28, 2007 |

Another big day at the Supreme Court today. In addition to striking down a school racial integration plan (maybe Scott will say more on this. I’m disgusted but not surprised), the Court also struck down the death penalty in the case of a man whose attorneys claim he is mentally ill (PDF). From today’s LA Times:

The Supreme Court today blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill.

Scott Louis Panetti shot his in-laws to death 15 years ago in front of his wife and young daughter.

Panetti knows what he did, but believes that he is on death row because he preaches the word of God, his lawyers say.

Panetti’s lawyers wanted the court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.

So the Supreme Court — in an opinion by Kennedy (somewhat surprisingly) — said that the Texas court that sentenced Panetti applied too restrictive a test for incompetency, and sent the case back down to be reviewed (not quite a lifting of the death sentence, but close). Thomas wrote a dissent, joined by Roberts, Alito and Scalia. No surprise there.

The case is good news. But what strikes me is not that the Roberts court actually made a good decision, but rather that we are splitting these hairs at all. Even the “good” capital decision cases for me provide further evidence that we shouldn’t have capital punishment at all.

Panetti, who thinks that God speaks to him, is probably sane by some standards (and some community mores). People can be medicated into sanity. Should we execute them then? What if someone understands what they did, but little else? Should we execute them then? Determining competency is difficult enough when capital punishment is not on the line. Many states have so narrowly defined incompetency that people are exceedingly rarely found to satisfy the criteria. Allowing executions of anyone — but especially of people who squeak into sanity by a hair — doesn’t make us a safer society. Just a less humane one.

UPDATE BY SL: Non-pdf link here.


[ 0 ] June 28, 2007 |

A judicial panel in Scotland has held that the only person convicted in the bombing of Pan Am Flight 103 may have been wrongly convicted and that potentially exculpatory evidence not available at trial has surfaced. I obviously have no way of judging the reliability of the evidence, but a detailed recent article in the LRB argues that there’s considerable evidence implicating a radical Palestinian group, that the crucial state witness was unreliable, and that there’s some reason to believe that Libya accepted responsibility as the price of re-integration.

School Integration Plans Struck Down

[ 0 ] June 28, 2007 |

And the Alito Court marches on; this was, alas, all too predictable. More when the opinions are released.

…opinions in pdf form here. Will post links to a format compatible with ongoing computer operation when they’re up.

…Christy has a good take here.

LIberal Fascism: The Next Iteration

[ 0 ] June 28, 2007 |

Ted Barlow has received a sneak preview of the next subtitle of Jonah Goldberg’s forthcoming epochal work of American letters:

Liberal Fascism: From Plato to the Pet Shop Boys.

National Review editor Jonah Goldberg lays out, in devastating fashion, the parallels between Hitler’s National Socialist party and modern-day liberals. In a very serious, thoughtful, argument that has never been made in such detail or with such care, Goldberg exposes the liberal plot to replace economic freedom with a council of eleven philosopher-kings, six East Coast boys and five West Coast girls. Read about how (Hillary’s? Obama’s? ed.) plan to abolish the family and destroy private property rights flows inevitably flows from a philosophy where the common good is always on their mind.

Impeccably researched and persuasively argued, LIBERAL FASCISM will elicit howls of indignation from the liberal establishment and rousing cheers from the Right.

And in the interests of fairness, I think it’s important to put this stirring defense on the record:

I resent the implication that the title of my colleague Jonah Goldberg’s new book should be seen as anything other than a deeply serious effort to stimulate a vigorous and productive intellectual debate.

As you well know, the argument has been made many times over the years that Big Government Liberalism is kinda like fascism, and is like, totally oppressive. But this argument has usually been made by anonymous usenet trolls with usernames like “H. Roark,” who rarely flesh out this argument with the detailed research craved by serious scholars, such as random frat-house anecdotes, Battlestar Galactica references, and historical analogies full of big words borrowed liberally from Wikipedia and the works of Victor Davis Hanson.

Never before has this classic freeper message-board screed been made with such detail and care, padded out to book length with filler, published by a non-vanity press, and largely ghost-written by talented writers like Ramesh Ponnuru.

Your refusal to take Jonah’s book seriously just shows how profoundly unserious and unwilling to engage in good-faith debate you cheese-eating surrender monkeys really are.

And he doesn’t even mention the important new findings that Hitler liked organic tofu potstickers!

Wow, And I Didn’t Think This Was Going To Be Profound!

[ 0 ] June 27, 2007 |

Shorter Verbatim Jonah Goldberg: “Brad Plummer [sic] is having predictable good fun with it. Of course, he doesn’t really seem to know what he’s talking about (oh, and it’s not like it’s news to me that the owner of Whole Foods is a self-described libertarian but maybe the German obsession with organic food and environmentalism, for two examples, is news to Plummer [sic.]).”

Oooh, so it’s going to be a book length version of the “Hitler Was A Vegetarian” fallacy. (Perhaps Jonah will even find out that those environmentalist Germans haven’t been fascist for quite some time.) I have no doubt that this will be a major intellectual contribution.

This seems about right.

…See also Julian Sanchez.

Kline: A Postscript

[ 0 ] June 27, 2007 |

An investigation of the Planned Parenthood being targeted by deposed Kansas panty-sniffer-in-chief Phil Kline shows that — he had nothing. Shocking!

Meanwhile, this article about pro-choice politics in Kansas is really interesting (Obama/Sebelius ’08!) [HT: Feministing] I also like this debunking of attempts to argue that the Dems won in ’06 by moving right:

For openers, seven of eight new Democratic senators and one Independent are pro-choice (Casey is the exception). Four more pro-choice governors were elected. The draconian abortion ban in South Dakota was soundly defeated. Voters also turned down ballot initiatives mandating parental notification for abortions in California and Oregon. A stem-cell initiative passed in Missouri, and candidates who ran on support for stem-cell research were overwhelmingly successful. And minimum-wage hikes passed on six of six state ballots. Pundits were also wrong about the Blue Dog Caucus in the House becoming pre-eminent: Actually, the Progressive Caucus gained many new members, and is the largest caucus in Congress.

There’s also a a fair amount of bad news, of course, but the midterms were very encouraging.


[ 0 ] June 27, 2007 |


The Employee Free Choice Act died in the Senate yesterday by a vote of 51-48 — nine votes short of what would be needed for cloture.

Huh. I wonder if maybe it would have been a good idea to call Frist’s bluff on the “nuclear option” nonsense a couple years back…

Whole Foods?

[ 0 ] June 27, 2007 |

I think, amazingly, that original title was a trfile less idiotic. I must admit that I’m unclear about how a chain selling food voluntarily to willing consumers represents “fascism” and “totalitarianism” in any sense, or the link between somewhat overpriced tasty organic produce and Hegel, but I’m sure the argument has never before been made in such detail and with such care! But why do conservatives hate capitalism?

“Various unrelated things I don’t like and resent because they’re associated with urban elites are fascism” really isn’t an argument that merits a blog post, let alone a book.

Dave Weigel and Ezra have more.

A Visit to the Marine Corps Museum

[ 0 ] June 27, 2007 |

Last week, Davida and I visited the US Marine Corps museum in Quantico. The museum is located on the unfortunately dubbed Jefferson Davis Highway (what, Hitler Highway was taken? Tojo Turnpike? Kaiser Wilhelm II Memorial Parkway? Ho Chi Minh Trail?), but is nevertheless quite lovely on the outside. The inside is designed around a central area with various 20th century aircraft, with a long antechamber describing the history of the Marine Corps in various twentieth century conflicts.

The most engaging displays focused on the Marine Corps experience in Vietnam and Korea, with further concentration on the Khe Sanh and Chosin Reservoir, respectively. Both of those exhibits contained life-size models of earthworks from the actual battles, and in the Chosin Reservoir exhibit room the temperature was lowered to about 50 degrees. I was less impressed with the World War II exhibit, which didn’t seem to break much new ground, although it did have the first flag to be raised over Iwo Jima. The Marine Corps training area was also entertaining enough, although on the day we went both the rifle range and the F-35B simulator were down with technical problems.

I do wish that there had been more material about the Marine Corps in the 19th century, or about the various brushfire wars in which the Marines participated in Latin America. Indeed, there was precious little even about the campaign against the Barbary pirates, which stood in contrast to the extensive treatment of that campaign at the Washington Navy Yard Museum. I would also have liked to learn more about the Marine Corps performance in the Civil War and the Spanish-American War, but no luck. Overall, though, it was a nice visit, with a decent gift shop and free admission.

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